INTERCLAIM HOLDINGS LTD. INTERCLAIM RECOVERY LTD. v. NESS

The opinion of the court was delivered by: REBECCA PALLMEYER, District Judge

MEMORANDUM OPINION AND ORDER

Plaintiffs Interclaim Holdings Ltd. and Interclaim Recovery Ltd.
(jointly "Interclaim") prevailed in this action for breach of contract
and breach of fiduciary duty against Intercom's former attorneys,
Defendant Ness, Motley, Loadholt, Richardson & Poole ("Ness, Motley").
See Interclaim Holdings Ltd. v. Ness, Motley, Loadholt, Richardson &
Poole, 298 F. Supp.2d 746 (N.D. IK. 2004), In an amended Bill of Costs,
Interclaim seeks recovery of expenses in the total amount of $75,846.63.
Ness, Motley objects to the request. For the reasons explained below, the
objections are sustained in part and overruled in part.

DISCUSSION

Federal Rule of Civil Procedure 54(d)(1) provides: "[C]osts other than
attorneys' fees shall be allowed as of course to the prevailing party
unless the court otherwise directs . . . " The costs a prevailing party
may recover are (1) fees of the clerk and marshal; (2) fees of the court
reporter for any part of the stenographic transcript necessarily obtained
for use in the case; (3) fees and disbursements for printing and
witnesses; (4) fees for exemplification and copies of papers necessarily
obtained for use in the case; (5) docket fees; and (6) compensation of
court-appointed experts and interpreters. 28 U.S.C. § 1920. Under Rule
54(d), the prevailing party enjoys the presumption that costs will be
awarded. See M. T. Bonk Co. v. Milton Bradley Co., 945 F.2d 1404, 1409
(7th Cir. 1991); Cichon v. Exelon Generation Co., No. 02 C 3441, 2003 WL
22757760 at *1
Page 2
(N.D. Ill. Nov. 10, 2003). It is "incumbent on the losing party to
overcome the presumption," McGill v. Faulkner, 18 F.3d 456, 459 (7th
Cir. 1994), and a court must award costs unless it can state good reasons
for not doing so. Weeks v. Samsung Heavy Indus. Co., 126 F.3d 926, 945
(7th Cir. 1997). In reviewing a bill of costs, the court will determine
whether the costs are allowable and reasonable both in their amount and
their necessity to the litigation. Cengr v. Fusibond Piping Systems,
Inc., 135 F.3d 445, 454 (7th Cir. 1998); Deimer v. Cincinnati Sub-Zero
Prods., Inc., 58 F.3d 341, 345 (7th Cir. 1995). An award of costs should
be entered if a listed expense is authorized by statute and is both
reasonable and necessary to the litigation. Northbrook Excess and Surplus
Ins. Co. v. Procter & Gamble Co., 924 F.2d 633, 642 (7th Cir. 1991). See
also Cefalu v. Village of Elk Grove, 211 F.3d 416, 427 (7th Cir. 2000).
Interclaim lists its costs as follows:

Ness, Motley objects to recovery of these costs in five categories,
but uses slightly different terminology. Thus, Ness, Motley objects to
recovery of costs for (1) photocopying [listed above as "Duplication
Fees"] (2) exhibit preparation and audio-visual equipment rental [listed
above as "Multimedia Exemplification"]; (3) fees for service of summons
and subpoenas [listed above as "Service Fees"]; (4) witness fees for
Martin Kenney, Irving Cohen, Irene Taylor and her companion, and travel
expenses for witnesses located more than 100 miles from the place of
trial [listed above as "Witness Travel Fees and Witness Subsistence
Fees"]; and (5) court reporter fees. The court addresses the objections
in order,
Page 3

A. Duplication Fees

In its second amended bill of costs, Interclaim seeks recovery of
$11,086.73 for duplication fees. The amount requested appears on its face
reasonable for a document-intensive case of this nature, and Ness, Motley
does not quarrel with the per-page rate, which appears to range from $.06
to $, 15 per page for standard size pages. See Harkins v. Riverboat
Servs., Inc., 286 F. Supp., 2d 976, 982 (N.D. III. 2003) (copy fees
between $0.10 and $0.20 per page are reasonable); Riley v. UOP LLC,
258 F. Supp.2d 841, 843 (N.D. III. 2003) ($.10 per page rate
reasonable). Ness, Motley argues, however, that Interclaim has not
demonstrated the necessity for these copying costs. (Defendant, Ness
Motley's Motion in Opposition to Interclaim's Second Amended Bill of
Costs [hereinafter, "Objections"], ¶ 8.)

In proving that copies were necessary to the litigation and not made
solely for attorney convenience, a party need not submit a "description
so detailed as to make it impossible economically to recover photocopying
costs." Northbrook Excess, 924 F.2d at 643. Nor does a party need to
submit a bill of costs itemizing each document copied. Glenayre
Electronics, Inc. v. Jackson, No. 02 C 0256, 2003 WL 21947112, *3 (N.D.
III. Aug. 11, 2003). The party seeking to recover costs must, however,
provide "the best breakdown obtainable from retained records in
Page 4
order to make the required showing of necessity." Id. See also In re
Brand Name Prescription Drugs Antitrust Litig., No. 94 C 897, 1999 WL
759472, at *6 (N.D. III. Sept. 1, 1999) (Kocoras, J.) (chart
identifying, for each pleading, the nature of the document copied, the
number of service copies prepared, the number of pages, the copying cost
per page, and the total copying cost held sufficient to satisfy Seventh
Circuit's requirements for reimbursement of photocopying costs).
Specifically, the party seeking recovery of photocopying costs must come
forward with evidence showing the nature of the documents copied,
including how they were used or intended to be used in the case. Glenayre
Electronics, 2003 WL 21947112, at *3 (citation omitted). "A prevailing
party may not simply make unsubstantiated claims that such documents were
necessary, since the prevailing party alone knows for what purpose the
copies were made.* Le Moine v. Combined Communications Corp., No, 95 C
5881, 1996 WL 435115, at *2 (N.D. III. July 31, 1996). Further, where the
court is unable to determine whether photocopies were reasonable or
necessary for use in a case, that claim for costs should be denied. See
Glenayre Electronics, 2003 WL 21947112, *4 (citing Place v. Abbott
Labs., No. 94 C 5491, 1999 WL 569580, at *3 (N.D. III. July 30, 1999));
American Auto. Accessories, Inc. v. Fishman, 991 F. Supp. 995, 997 (N.D.
III. 1998).

The court concludes that Interclaim has not met its burden on this
issue. The invoices it has submitted do disclose the copying costs per
page, but they fail to identify the particular pages or documents copied,
even by way of rough categorization. Attorney McNally's affidavit asserts
that Interclaim "has sought reimbursement only for the costs of copying
documents for document production during the discovery period and for use
at the June 2003 trial." (Affidavit of Laura K. McNally in Support of
Interclaim's Bill of Costs, ¶ 12.) Indeed, invoices from February,
March, April, and May 2003 refer to Bates labeled documents, presumably
for purposes of discovery. (Invoices, Exhibit I to Interclaim's Bill of
Costs.) Nevertheless, without at least minimal additional detail, the
court is unable to verify that the copies indeed relate to materials
necessary for use in this case, as opposed to materials copied for
counsel's convenience. Counsel's internal records
Page 5
(presumably, of in-house copies) are even less informative; they include
the number of copies made, apparently linked to this case by way of the
firm's client number, and the cost of those copies at $.10 per page. All
other potentially identifying information has been redacted from the
record, however, and Attorney McNally's affidavit does not even explain
the client codes. The affidavit points out that Interclaim is not seeking
reimbursement for file and service copies of motions and pleadings,
recovery of which is authorized by Rule 54. Because the court is unable
to determine that the amounts Interclaim does seek are properly
reimbursable, the court sustains Ness, Motley's objection to recovery of
the copying charges. See Glenayre Electronics, 2003 WL 21947112, at *3
(denying claim for photocopying fees where party presented "bare-bones"
internal billing statements which provided none of the detail or
explanation required).

B. Multi-media Expenses

Interclaim seeks recovery of its expenses for exhibit preparation and
audio-visual equipment rental in the amount of $26,35,163, Ness, Motley
objects, but the only authorities it cites are a single case and a
treatise, both 30 years old. Law in this Circuit is clear that these
expenses are recoverable as costs. The Seventh Circuit addressed the
matter in Cefalu v. Village of Elk Grove, 211 F.3d 416 (7th Cir.
2000), rejecting this court's own more conservative approach to the
question:

[i]n view of the illustrative purpose of
exemplification, we are not convinced that the line
between producing an exhibit and presenting that
exhibit to the court is the most appropriate one to
draw. Enlarging a crucial document, for example, may
be the only practical means of permitting a witness to
point out the forensic features of that document . . .
Allowing fees for the cost of preparing [the
exhibit] but not for renting the projector would in
this sense be a highly formalists distinction, as each
is key to the illustrative function of the exhibit.

In contrast to Interclaim's photocopying invoices, the invoices it has
submitted from Trial Graphix provide substantial detail, identifying the
work performed, the number of hours worked on specific tasks, and the
materials produced for use at trial. Having presided over the trial, the
court is satisfied that the display of complicated documents, including
the retainer agreement between Interclaim and Ness, Motley, the decisions
of the Canadian courts, and correspondence, was useful and necessary to
communicate the issues in this case effectively to the jury. Cf.
Chemetall GmbH, 2001 WL 1104604, at *31 ("pointing to a single page in a
large trial notebook with multiple pages of exhibits would not have
effectively shown to the jurors the most important features of the
chemical reaction"). Ness, Motley's objection to the multimedia
exemplification charges is overruled,

C. Service of Summons

Interclaim seeks fees for service of summons and subpoenas in the
amount of $1,588.20. Ness, Motley objects to award of these fees,
asserting that they are "not recoverable where they are based upon the
service of the subpoena by a special process server." (Objections, ¶
11.) The authorities it cites for this proposition, however, are from
other Circuits. Although 28 U.S.C. § 1920
Page 7
has not been amended to reflect the practical reality that the United
States Marshal rarely serves process in private civil actions, the Court
of Appeals for the Seventh Circuit allows the award of costs for service
by private process servers to the extent that their fees do not exceed
the statutory fees for United States Marshals. Collins v. Gorman,
96 F.3d 1057, 1060 (7th Cir. 1996) (rejecting the authority of Crues v.
KFC Corp., 768 F.2d 230 (8th Cir. 1985), relied on by Ness, Motley).
Interclaim has submitted invoices from its private process servers, as
welt as the affidavit of its paralegal, Michael J. McNaughton, explaining
that the private services charged Interclaim a flat fee which averaged to
$88.32 per witness, less than the fee charged for two hours at the $45
per hour rate charged by the U.S. Marshals Service for this district. Mr.
McNaughton's affidavit is technically hearsay, but it is corroborated by
the invoices Interclaim has submitted. In any event, the court is unaware
of any requirement that the Federal Rules of Evidence control the
admissibility of materials submitted in support of a Bill of Costs.
Ness, Motley's objection to Interclaim's costs for service is overruled.

D. Witness Fees

Interclaim seeks recovery of travel and subsistence fees for its
witnesses. Recovery of fees and disbursements for witnesses is expressly
authorized by 28 U.S.C. § 1920(3), and 28 U.S.C. § 1821 provides that "a
witness in attendance at any court of the United States . . . shall be
paid an attendance fee of $40 per day for each day's attendance,"
28 U.S.C. § 1821(a)(1), (b). Our Court of Appeals has concluded that read
together, these sections authorize the award of costs to reimburse
witnesses for their reasonable travel and lodging expenses. Majeske v.
City of Chicago, 218 F.3d 816, 825-26 (7th Cir. 2000) (citing Holmes v.
Cessna Aircraft Co., 11 F.3d 63, 64-65 (5th Cir. 1994)); Barber v. Ruth,
7 F.3d 636, 645 (7th Cir. 1993); Chicago College of Osteopathic Med. v.
George A. Fuller Co., 801 F.2d 908, 910 (7th Cir. 1986). The witnesses
are expected to "utilize a common carrier and the most economical rate
reasonably available." 28 U.S.C. § 1821 (c)(1).
Page 8
Ness, Motley has objected to this item of costs on three grounds:
(1) that recovery of fees for witnesses who are also officers of the
corporate plaintiff is improper; (2) that Interclaim is not entitled to
reimbursement for the airfare of witness Irene Taylor and her companion
where local witnesses were available; and (3) that expenses for travel in
excess of 100 miles is not compensable. For the reasons explained below,
each of these objections is overruled.

First, the fact that witnesses Martin Kenny and living Cohen are also
officers of Plaintiff Interclaim does not preclude recovery of expenses
for their testimony. The statute provides that "all witnesses" available
to testify at a deposition or at a trial are to be paid the fees and
allowances provided under 28 U.S.C. § 1821, including witnesses willing
to testify voluntarily. Movitz v. First Nat'l Bank of Chicago,
982 F. Supp. 571, 576 (N.D. III. 1997) (citing FMC Corp. v. United
States, No. 91 C 4784, 1994 WL 548212, at*1 (N.D. III. Oct. 6, 1994)).
The Seventh Circuit has explained that

[i]n interpreting Section 1821, courts consistently
have held that parties are not entitled to witness
fees for their own appearances in court. See, e.g.,
Green Const. Co. v. Kansas Power & Light Co.,
153 F.R.D. 670, 678-79 (D. Kan. 1994); Ingersoll
Milling Machine Co. v. Otis Elevator Co., 89 F.R.D. 433,
435 (N.D. III. 1981). Equally consistently, however,
courts have held that costs may be assessed for
corporate officers and directors not personally
involved in the litigation who testify on behalf of
the corporation. See Green Const Co., 1994 WL 76612 at
*6 ("the expenses of a director or officer of a
corporate party who is not personally involved in the
litigation may be taxable if he is testifying on
behalf of the corporation he represents, and that
corporation is a party to the lawsuit.") (citations
omitted); Ingersoll, 89 F.R.D. at 435; see also 10
CHARLES A. WRIGHT & ARTHUR R. MILLER, FEDERAL
PRACTICE AND PROCEDURE § 2678, at 376.

In this case, Interclaim seeks recovery of expenses relating only to
the days when Mr. Cohen and Mr. Kenney testified. The interests of both
officers arguably reflect more personal involvement than "a natural
concern for their corporate employer[]," Green Constr. Co., 1 53 F.R.D.
at 679, but Ness, Motley has not developed this argument and the court
declines to do so on its behalf. See Kauthar SDN DHB v. Stemberg,
149 F.3d 659, 668 (7th Cir. 1998) (`[i]t is not the obligation of this
court to research and construct the legal arguments open to parties,
especially when they are represented by counsel"). The request for
witness fees for Mr. Cohen and Mr. Kenney is allowed.

Ness, Motley's second objection is aimed at "airfare for Irene Taylor
and her companion." The court notes, initially, that Interclaim seeks
reimbursement for the travel expenses of Ms. Taylor alone, not her
companion. Ms. Taylor testified briefly but persuasively about her
understanding of her own role in the class action in which Ness, Motley's
conduct is challenged, and the effect that Ness,

Motley's abandoning of her as a client had on her. Ness, Motley
contends recovery of expenses for her travel is inappropriate because
"local witnesses were available'; tellingly, however, Defendant, who
itself once represented Ms. Taylor and the other 28 "Interclaim victims'
has not bothered to identify any such local witness. Within reason, a
party should be able to utilize the best available witnesses. FMC
Corp., 1994 WL 548212. Ness, Motley's objection to the expenses for
Irene Taylor is overruled.

Finally, Ness, Motley objects to recovery of travel expenses greater
than one hundred miles from the place of the trial. The case Defendant
cites, however, Farmer v. Arabian American Oil Co., 379 U:S. 227 (1964),
makes clear that there is no blanket prohibition of such recovery.
Instead, the matter is left to the discretion of the trial judge under
Rule 54(d). Id. at 232-33. In this Circuit, a prevailing party is not
required to make a showing of special circumstances in order to justify
recovery of expenses for travel of witnesses from distances greater than
100 miles: "Nothing in Rule 54(d) or in 28 U.S.C. § 1821 or 1920 suggests
that a witness's travel expenses cannot be
Page 10
reimbursed if he comes from beyond subpoena range. Just because he can
not be subpoenaed to testify does not mean that if he testifies
voluntarily the travel expenses that he incurs are not reimbursable."
Chicago College of Osteopathic Medicine, 801 F.2d at 911. Ness, Motley's
objections to the witness expenses are overruled.

E. Court Reporter Fees

Finally, Interclaim seeks recovery of fees it paid the court reporter
for the transcript of witness depositions. The Seventh Circuit has held
that although such fees are not specifically mentioned in the statute,
the district court may award them in its discretion pursuant to
28 U.S.C. § 1920(2). Held v. Held, 137 F.3d 998, 1002 (7th Cir. 1998).
See also SK Hand Tool Corp. v. Dresser Indus., Inc., 852 F.2d 936, 944
(7th Cir. 1988); Riley, 258 F. Supp.2d at 844. In its two-sentence
objection to this item of costs, Ness, Motley merely asserts that the
fees are `excessive and improper[]" and seek recovery of expenses "not
reasonably necessary for trial." (Objections, ¶ 13.)

These undeveloped objections must be overruled. The law is clear that
deposition transcripts "need not be absolutely indispensable in order to
provide the basis of an award of costs; it is enough if they are
`reasonably necessary.'" American Automotive Accessories, 991 F. Supp. at
997 n. 1 (quoting Barber, 7 F.3d at 645). Moreover, in determining
whether a deposition was reasonably necessary, "[t]he proper inquiry is
whether the deposition was `reasonably necessary* to the case at the time
it was taken." Cengr, 135 F.3d at 455 (emphasis added); Barber, 7 F.3d at
645 ("the determination of necessity must be made in light of the facts
known at the time of the deposition"). In this case, all but one of the
witnesses for whose deposition Interclaim now seeks recovery was in fact
called as a witness at trial. The single witness who did not testify was
identified by each side on its witness list in the final pretrial order.
The notion that these depositions were not necessary cannot be credited.
Nor is the court concerned by Ness Motley's suggestion that Interclaim
somehow acted
Page 11
improperly in re-calculating its bills for the amended Bill of Costs. The
recalculation reduced the amount requested and obviously did not
prejudice Defendant. Ness, Motley's objection to the amounts requested for
deposition transcripts is overruled.

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